Opinion
C. A. 3:21-771-MGL-KDW
06-01-2022
SHARON STONE, Plaintiff, v. DO IT BEST CORP., Defendant.
REPORT AND RECOMMENDATION
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
This matter is before the court for consideration of the Motion for Summary Judgment filed by Do it Best Corp. (“Defendant” or “Do it Best”), in which it seeks judgment as a matter of law as to all claims remaining in the Complaint filed by its former employee, Sharon Stone (“Plaintiff” or “Stone”). ECF No. 47. Previously, the court dismissed claims of gender-based discrimination and retaliation pursuant to Title VII; claims for violation of certain constitutional rights under 42 U.S.C. §§ 1981 and 1983; and all state-law-based claims that had been brought against Do it Best and former individual Defendants Vince Seay and Scott Smith. See ECF Nos. 41, 42 (granting motion for judgment on the pleadings as to all state-law-based claims, which concluded all claims against Seay and Smith, and as to claims for gender-based discrimination and claims brought pursuant to 42 U.S.C. §§ 1981 and 1983). Discovery has now been completed, and Defendant seeks summary judgment as to the claims remaining in Plaintiff's Complaint, ECF No. 1-1: 1) Title VII claim for Race Discrimination/Disparate Treatment (First Cause of Action); 2) Title VII Retaliation (Second Cause of Action); and 3) Disability Discrimination (Fourth Cause of Action). Mot. Summ. J., ECF No. 47. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation (“R&R”). Having reviewed the Motion, including supporting memorandum and exhibits, ECF No. 47 through 47-3; Plaintiff's opposition and exhibit, ECF No. 57 through 57-2; Defendant's Reply, ECF No. 59; and the applicable law, the undersigned recommends that Defendant's Motion for Summary Judgment, ECF No. 47, be granted and this matter be ended.
As it must, the court considers the facts in the light most favorable to Plaintiff, the nonmoving party. These facts are derived from Defendant's Motion and Plaintiff's Response thereto. To the extent necessary, additional facts are set out in relevant portions of this Report.
A. Plaintiff's hiring and job duties at Do it Best
Do it Best is a wholesale distributor of hardware and building material products to independently owned hardware, home center, and lumberyard stores. Decl. of Do it Best's General Manager at Lexington, SC Service Center, Scott Smith (“Smith Decl.”) ¶ 1; ECF No. 47-3. In 1996, Plaintiff, an African-American female, began working at Do it Best's Lexington, SC retail service center (a warehouse) as an Order Filler. Pl. Dep. 32-33, ECF No. 47-2; Smith Decl. ¶ 2. Smith was part of the management team that interviewed and hired Plaintiff. Pl. Dep. 33; Smith Decl. ¶ 2. As an Order Filler, Plaintiff pulled items from the warehouse to be sent to customers who had ordered the items. Pl. Dep. 34; Smith Decl. ¶ 2. Some years later Plaintiff moved into the receiving department, where she sorted items that were received from vendors to be stored in the warehouse until ordered by customers. Pl. Dep. 35-36; Smith Decl. ¶ 3. Plaintiff indicated she worked in the receiving department at all times relevant to this litigation. Pl. Dep. 35. In the receiving department, Plaintiff worked as a UPS checker, which meant that she was responsible for receiving small packages that were delivered by UPS or FedEx or the postal service and for confirming the accuracy of the items before they were stored in the warehouse. She worked alone on a computer sorting these items. Pl. Dep. 36-37; Smith Decl. ¶ 3. Once Plaintiff had checked and sorted items, those items would generally be placed in a bin where they would be moved to the proper location in the warehouse by one of the forklift operators. Smith Decl. ¶ 3.
B. Plaintiff's service on Defendant's Safety Team
Plaintiff was a member of the Safety Team at Do it Best's Lexington warehouse. Pl. Dep. 46. As part of the Safety Team, Plaintiff was to keep an eye out for unsafe conditions in the workplace and to address any issues so they could be corrected. Id. Plaintiff would report her concerns to General Manager Smith; her immediate supervisor, Department Manager Patti Shumpert; or Safety Manager Jason Hadden. Id. Plaintiff received safety training as a regular part of her employment. Training Report, ECF No. 47-2. Plaintiff was trained on how to safely operate fork lifts, electric pallet jacks, and tuggers. Pl. Dep. 50. As part of her forklift training, Plaintiff was taught about things such as how much weight to pick up, how to watch for pedestrians in the area of a forklift, and how pedestrians were to watch out for forklifts. Id. at 54-55.
C. Plaintiff's complaints about coworkers
Plaintiff testified that some of the complaints she made regarding safety-related issues were addressed by supervisors, but some were not. In her deposition, Plaintiff focused on several complaints she believed had not been addressed: complaints she made about two white coworkers, Vince Seay and Jennifer Bradley. Pl. Dep. 46-48, 173 (indicating a lot of the safety issues she reported related to Seay and Bradley). Plaintiff recalled complaining to Smith that Seay was throwing pallets on the floor. Id. at 47. Plaintiff indicated that, to her knowledge, that was not addressed with Seay. She noted, though, that she was unsure whether Smith discussed it with Seay. Id. at 47-48. Plaintiff indicated she reported several things concerning Seay to her supervisor Shumpert, including Seay's blocking Plaintiff in at a computer with the forklift. Id.at 47-49. Plaintiff noted Shumpert had addressed the forklift-blocking incident with Seay but she was unsure about other reported incidents. Id. at 49.
Plaintiff recounted a time when Bradley threw cardboard down at Plaintiff's feet. Pl. Dep. 64-65. Plaintiff noted Smith had called Bradley and her into his office to discuss things when Plaintiff indicated Bradley had whistled at her. Plaintiff also noted Bradley had complained about Plaintiff's making too much noise. Id. at 64-67. Plaintiff indicated she complained to Smith that Seay and Bradley would work in the “main aisle” area, blocking an area she believed should be left open for foot traffic. Pl. Dep. 152-53.
D. Plaintiff's November 2019 three-day suspension
Central to this litigation is an October 29, 2019 incident involving a forklift for which Plaintiff was issued a three-day suspension in November 2019. Nov. 4, 2019 Counseling Record, ECF No. 47-2 at 231-32. Plaintiff indicated that she and her coworker Raymond “Mel” Norris were walking down one of the main aisles of the warehouse when returning from lunch one afternoon. Plaintiff and Norris were walking side-by-side. Pl. Mem. 86-87. Seay was operating a forklift and was driving it down the same main aisle, headed toward Plaintiff and Norris. Id. at 87. Norris stepped aside to let the forklift pass. Id. at 87; see Norris's handwritten statement, ECF No. 47-3 at 8. Plaintiff indicated Norris did not say anything and she did not see the forklift. She did not move; Seay stopped the forklift after Plaintiff “had got right up on it.” Pl. Dep. 87-88. Plaintiff said she stepped over the fork itself to go around the forklift. Id. at 88. Plaintiff testified that she said to Seay, “you don't need to be driving straight at us on the forklift. That's dangerous.” Id. Plaintiff asked her supervisor, Patti Shumpert, who was walking along with her and Norris, whether she had seen what happened. Id. at 89. Plaintiff said that Shumpert “just looked, and she didn't say nothing.” Id. Plaintiff said she spoke about the incident with other coworkers and called Jason Hadden, who was head of safety. Id. Plaintiff does not recall what Hadden's response was at that time. Id. at 90.
A few days later, Plaintiff met with Smith about the forklift incident, and he indicated that he was going to discuss the matter with the main company in Fort Wayne and would get back with Plaintiff about how it would be handled. Pl. Dep. 92. Smith indicated he received a written complaint from Seay concerning the incident. Smith Decl. ¶ 7; Seay Statement, ECF No. 47-3 at 6. Seay indicated he came to a stop as he approached Plaintiff and Norris so he could ask Norris whether it was Norris's forklift he was driving. Seay Statement. Seay indicated Plaintiff “became outraged,” shouted, and stepped on the lowered forks as she continued along the way. Seay indicated he did not acknowledge Plaintiff. Seay Statement, ECF No. 47-3 at 6. In investigating the matter, Smith reviewed video of the incident and found it supported Seay's allegations. Smith Decl. ¶ 7.
On November 4, 2019, Plaintiff met with Smith and Shumpert. Id. At that time, Plaintiff was advised she was being suspended because “they felt, you know, that I should have just walked around the forklift, and I shouldn't have said anything to Mr. Seay or --.” Id. at 92. In the Counseling Record completed by Smith and signed by Smith and Plaintiff, Smith included the following details regarding Plaintiff's counseling:
Manager's/Supervisor's explanation: Sharon, on Tuesday October 29 you and a co-worker were walking back from lunch break. Once you entered the receiving dock another co-worker was operating a sit down fork lift. The lift was operating in the drive lane between the dock doors and the staged product. The person you were walking with veered over to the right to allow the lift to come by. You continued to walk directly towards the lift. The lift driver stopped. You then walked up to the fork on the left and then walked around the lift.Counseling Record, ECF No. 47-2 at 231. Plaintiff acknowledged this was an accurate description of events. Pl. Dep. 94. Plaintiff received a three-day suspension. The “Counseling Action” stated as follows:
Sharon, you are being issued a 3-day suspension for attempting to slow down, stop, or disrupt the conduct of company business or interfering with other team members or management and for failure to adhere to safety standards in regards to equipment on the warehouse floor. Deliberately moving in front of equipment that is in operation or prohibiting team members from operating their equipment is a violation of our safety standards, rules set forth in our Team Member Handbook, and training. The dates of the suspension are November 5, 6, 7. You are to return to work on Friday November 8. Any future instance of attempting to slow down, stop, or disrupt the conduct of company business or interfering with other team members or management as well as failure to adhere to safety standards may result in additional disciplinary action up to and including termination.Id. at 231-32. Defendant did not discipline Seay or Norris because it determined they each did what they were supposed to do under the circumstances. Norris moved out of the way of the forklift; Seay stopped the forklift when Plaintiff continued walking toward it. Smith Decl. ¶ 7.
Plaintiff served the suspension and returned to work on November 8, 2019. Pl. Dep. 94. Plaintiff indicated in deposition that she did not think the suspension was discriminatory. Pl. Dep. 95.
E. Plaintiff announces retirement plans and retires effective June 2020
Plaintiff spoke with Irene Montez in the corporate human resources (“HR”) office in November 2019 to discuss options for taking early retirement. Pl. Dep. 124-25. Plaintiff was advised that she had enough years of service to be eligible for early retirement as of June 2020, when she would be 55 years old. Id. at 125. Subsequent to the November 2019 conversation Plaintiff had a conversation with Sharon Matthews to finalize a retirement date. Id. at 126. It was decided that Plaintiff would work until April 24, 2020, and then use her accrued vacation and sick days to be paid through her official retirement date in June. Id. at 127. The Company held a retirement party for Plaintiff and Do it Best gave her a retirement gift that included a “pandemic package” (various cleaning supplies that were difficult to obtain because of the COVID-19 pandemic), and merchandise purchase credit of $50 per year of service for a total of $1,150 to spend on Do it Best merchandise. Id. at 127-29, 148-49. Since retiring, Plaintiff has been living off her Do it Best pension and her 401(k). Id. at 30-31.
F. Plaintiff completes FMLA paperwork
In March 2020, the last month before her planned last day of work before her June 2020 retirement, Plaintiff turned in paperwork under the Family Medical Leave Act (“FMLA”). Pl. Dep. 114-15. Plaintiff explained in her deposition that she did not need any medical leave at that time, nor had she requested an accommodation. Rather, Plaintiff explained that she had put in the FMLA paperwork “in case she needed it.” Id. Plaintiff explained she had begun having more issues with high blood pressure, including more headaches, and she “knew sooner or later it was going to lead to [her] having to be tardy again.” Id. at 115. Plaintiff never actually took any FMLA leave, and she is unsure whether her request for FMLA leave was ever approved. Id. at 122. Plaintiff testified that she never needed to request an accommodation from hypertension.. Id. at 114. Plaintiff noted she had a history of hypertension since 2003 and started taking medication for the condition around 2012. Id. at 111-12, 122. The FMLA paperwork indicated Plaintiff remained able to perform her job functions. FMLA Paperwork, ECF No. 47-2 at 234. The health care provider completing the FMLA form indicated Plaintiff would not be “incapacitated” for a particular amount of time. Id. at 235. Rather, Plaintiff would need to “attend follow-up treatment appointments” every four months. Id. It was further estimated that Plaintiff's condition would “cause episodic flare-ups periodically preventing [Plaintiff] from performing [her] job functions.” Id. It was explained that Plaintiff would “need to be out of work due to headaches & dizziness with her blood pressure (elevated)” approximately three times every three months. Each episode was predicted to last for two days. Id.
Plaintiff's testimony is that she never sought an accommodation because of her high blood pressure; however, in opposing summary judgment Plaintiff states that “she filed a Reasonable Accommodation Request Form under the [ADA].” Pl. Mem. 3 (citing Compl. ¶ 20; Pl. Dep. 115). The record contains no such form. Rather, the FMLA paperwork is dated March 13, 2020, which is the date Plaintiff's Complaint lists as having filed an ADA Reasonable Accommodation Form. ECF No. 47-2 at 238; Compl. ¶ 20. A pleading without evidentiary support is insufficient at the summary-judgment stage. See Fed.R.Civ.P. 56(c)(1). In any event, the court notes Plaintiff's averment and claim that she submitted an ADA form. Whether she did or did not does not impact the undersigned's recommended ruling within.
G. EEOC Charges
Plaintiff filed three EEOC Charges during her tenure at Do it Best. After dismissal by the EEOC, Plaintiff did not pursue federal litigation as to the first two-which were filed in March 2018 and April 2019 and included claims of race-based discrimination and retaliation-and the time to do so has passed. ECF No. 237 at 230, 239.
Plaintiff filed her third EEOC Charge on January 14, 2020. ECF No. 47-2 at 238-39. Plaintiff alleges discrimination based on race, retaliation, and disability, beginning November 4, 2019 through January 9, 2020. She also checked the box indicating “Continuing Action.” ECF No. 47-2 at 238. The “Particulars” of the Charge focus on the November 5-7, 2019 suspension for the forklift incident. Id. She also contends she is treated differently from white/nondisabled employees. Id. at 238-29. Plaintiff received a Right-to-Sue letter from the EEOC in October 2020 and filed her Complaint in state court on January 12, 2021. Compl. ¶¶ 9-10. The matter was removed to this court on March 17, 2022. ECF No. 1.
II. Standard of review
A. Motions for summary judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
B. Burden of proof in Title VII and ADA claims
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). The ADA provides in part that an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §§ 12111(2), 12112(a). A plaintiff may demonstrate a violation of either statute through direct or circumstantial evidence. A plaintiff offers direct or indirect evidence of discrimination using “ordinary principles of proof.” Burns v. AA F-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (in ADEA context) (internal quotations omitted). Under this method, a plaintiff will only survive summary judgment if he or she “produce[s] direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact.” Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001) (ADA retaliation claim) (citation and quotation omitted) (alteration in original).
When direct evidence is lacking, a plaintiff may produce circumstantial evidence and proceed under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A plaintiff may also use this burden-shifting framework to prove ADA claims through indirect evidence. Laird v. Fairfax Cnty., Va., 978 F.3d 887, 892 (4th Cir. 2020). Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation of Title VII or the ADA, the burden of production shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves, 530 U.S. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Nonetheless, in considering an employee's pretext argument, there is nothing in the “McDonnell Douglas burden- shifting framework that says ‘a plaintiff must always introduce additional, independent evidence of discrimination.'” Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 220 (4th Cir. 2016) (quoting Reeves, 530 U.S. at 149)). “To the extent that the evidence supporting a plaintiff's prima facie case also undermines the employer's non-retaliatory justification, that evidence may be called upon by the trier of fact in determining whether or not the proffered justification is pretextual.” Id. at 220. The court is ever mindful, too, that such inquiry is “meant only to aid courts and litigants in arranging the presentation of evidence.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006) (quoting Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988)).
III. Analysis
A. Plaintiff has not proffered direct evidence of discrimination
Defendant seeks summary judgment as to all of Plaintiff's claims, focusing on the burdenshifting method of proof. Plaintiff begins her opposition to summary judgment with a brief argument that the “McDonnell Douglas burden-shifting framework is inapplicable[]” and suggesting that she has “direct evidence of Do it Best's discriminatory actions in enforcing employee disciplinary measures.” Pl. Mem. 5. However, as noted by Defendant on reply, Plaintiff fails to identify any evidence she contends is direct evidence of any sort of discrimination. Reply 1-2, ECF No. 59.
As recently noted by the Fourth Circuit:
Direct evidence “is evidence which, if believed, would prove the existence of a fact without any inference or presumptions.” O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir. 1995) (cleaned up), rev'd on other grounds, 517 U.S. 308 (1996). It is evidence of conduct or statements that reflect the alleged discriminatory attitude and that bear directly on the contested employment decision. Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982).Walton v. Harker, 33 F.4th 165 (4th Cir. 2022) (finding comments insufficient to provide direct evidence of Title VII or ADEA retaliation as they had no nexus to the adverse employment action at issue). The Fourth Circuit has noted that “[su]ch unaided proof may consist of direct evidence that the employer announced, or admitted, or otherwise unmistakably indicated that race was a determining factor.” Cline, 689 F.2d at 485.
Here, it is not clear what Plaintiff's “unaided proof” might be. To the contrary, Plaintiff testified in her deposition that she did not believe her suspension for violation of Do it Best's safety policies, guidelines and procedures, was discriminatory. Pl. Dep. 94-95. Plaintiff has proffered no evidence to establish any of her claims based on direct evidence. Accordingly, her claims will be analyzed using the McDonnell Douglas burden-shifting framework.
B. Title VII
Plaintiff alleges Title VII claims of discrimination, retaliation, and harassment (hostile work environment) based on her race.
1. Title VII discrimination claim: disparate treatment
Next, Defendant seeks summary judgment as to Plaintiff's Title VII disparate-discipline claim. To state a prima facie claim for race discrimination under Title VII on a disparate treatment or discipline theory, a plaintiff must show: (1) that she is a member of a class protected under Title VII, and (2) that the prohibited conduct in which she engaged was comparable in seriousness to misconduct of the employees outside the protected class (“comparators”), and (3) that the measures enforced against her were more severe than those enforced against those other employees. Pl Mem. 6 (quoting Hurst v. D.C., 681 Fed.Appx. 186, 190 (4th Cir. 2017)); Reply 3.
The undersigned notes that a Title VII plaintiff “[is] not required as a matter of law to point to a similarly situated comparator in order to prevail on a discrimination claim.” Hurst v. D.C., 681 Fed.Appx. 186, 191 n.5 (4th Cir. 2017) (citing Bryant v. Aiken Reg'lMed. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir. 2003)). Nonetheless, when, as here, Plaintiff has based her discrimination claim on her contentions that she was treated differently from similarly situated white co-workers, “whether the proffered comparators are similarly situated goes to the core of [her] prima facie case.” Id.
In its principal brief Defendant had focused on a slightly different disparate-treatment prima-facie framework, one that includes a satisfactory-job-performance prong and is not necessarily focused on claims of disparate discipline. Def. Mem. 11-15. As both parties have now analyzed Plaintiff's claim using the disparate-discipline framework set out in Hurst, the court does as well.
Defendant does not dispute that Plaintiff is a member of a protected class. Rather, Defendant argues Plaintiff cannot establish a prima facie claim of disparate discipline because she has presented no valid comparators who received less harsh treatment. Def. Mem. 14-15; Reply 3-5.
While the prima facie burden is not a heavy one, “it is the plaintiff's task to demonstrate that similarly situated employees were not treated equally.” Burdine, 450 U.S. at 258. In determining whether other workers are similarly situated, the “similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful.” Lightner v. City of Wilmington, N.C. , 545 F.3d 260, 265 (4th Cir. 2008); see Moore v. City of Charlotte, NC, 754 F.2d 1100, 1105 (4th Cir. 1985) (“The most important variables in the disciplinary context, and the most likely sources of different but nondiscriminatory treatment, are the nature of the offenses committed and the nature of the punishments imposed.”). To validate a comparator, a plaintiff must “establish that ‘other employees' were similarly situated in all relevant aspects; that they ‘dealt with the same supervisor [and] [were] subject to the same standards.'” Ward v. City of N. Myrtle Beach, 457 F.Supp.2d 625, 643 (D.S.C. 2006) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)); Mahomes v. Potter, 590 F.Supp.2d 775, 78384 (D.S.C. 2008) (examining details of plaintiff's would-be comparators and finding plaintiff had not met burden of showing prima facie case).
Plaintiff focuses on two white employees-Seay and Bradley-alleging they were disciplined less harshly (or not at all). Pl. Mem. 7. Plaintiff discusses the forklift incident involving Seay, noting Defendant found Plaintiff violated safety rules by walking toward the forklift rather than stepping aside. Id. Citing only her own deposition testimony, Plaintiff characterizes the same incident as one in which “she followed the safety rules to move around the side and admonish[] Mr. Seay [] for the way he operated the forklift.” Id. (citing Pl. Dep. 136). Plaintiff characterizes the incident as one in which Seay “intentionally headed the forklift directly toward Ms. Stone -misconduct.” Id. (citing Pl. Dep. 89). Plaintiff also asserts that Bradley's act of throwing cardboard at Plaintiff's feet was also “misconduct.” Id. (citing Pl. Dep. 64-65). Based on her own subjective argument, then, Plaintiff submits that her own misconduct in the forklift incident is “comparable in seriousness to Seay's and Bradley's “misconduct” in the forklift incident (Seay) and the cardboard-throwing incident (Bradley). Id. Because she was suspended and neither Seay nor Bradley received any disciplinary action for their actions, Plaintiff submits she has satisfied the prima facie case of showing she was subjected to disparate discipline. Id.
Having reviewed the parties' arguments and the evidence presented, the undersigned finds Plaintiff has not set forth evidence sufficient to demonstrate that Seay or Bradley would be appropriate comparators. Plaintiff must supply more than her own subjective opinion that Seay's conduct in operating the forklift on November 4 was “intentional” or a “safety violation” or that Bradley's cardboard-throwing was a “safety violation” for which they each received less-harsh (or no) discipline. Pl. Mem. 7-8 (citing Pl. Dep. 64-65, 89). However, Plaintiff does not set forth competent evidence that Seay or Bradley committed the same or similar offenses and received and were treated less harshly than Plaintiff. Instead, Plaintiff's argument and evidence are based on her own conjecture and speculation, which are insufficient to create a genuine issue of fact. See Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (noting that “conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence” cannot create genuine issues of material fact); Nat'l Enterprises, Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000) (finding “self-serving affidavit” insufficient to defeat motion for summary judgment); Mackey v. Shalala, 360 F.3d 463, 469-70 (4th Cir. 2004) (“A plaintiff's own self-serving opinions, absent anything more, are insufficient to establish a prima facie case of discrimination.”); Wilson v. Wal-Mart, Inc., No. 3:15-cv-1157-JFA, 2016 WL 3086929, at *3 (D.S.C. June 2, 2016) (“Uncorroborated and self-serving testimony cannot give rise to a genuine factual dispute.”). Furthermore, Plaintiff admitted the only evidence she had that Seay had intentionally driven the forklift straight toward her was her own belief. Pl. Dep. 195. Further, Plaintiff does not contend that her own conduct did not warrant discipline. Id. at 194-96. Her subjective belief that Seay, too, should have been suspended does not provide sufficient evidence that his conduct and her own were sufficiently similar for him to be considered a comparator. Nor does Plaintiff provide any evidence (other than her own subjective belief) that Bradley's alleged throwing of cardboard was of comparable seriousness to Plaintiff's actions on November 4. Further, she does not contend she was ever accused of throwing cardboard at someone's feet and receiving more severe discipline than Bradley did. Plaintiff also briefly recounts an incident that took place in January 2020 when Seay was operating a pallet jack that almost collided with a reach truck. Pl. Mem. 7 (citing Pl. Dep. 145). Plaintiff testified that she complained about Seay's operation of the pallet jack but was advised that she should not discuss the incident with Seay. Pl. Dep. 145. Without offering any evidence or argument regarding how Seay's pallet-jack operation was the same or similar to her actions during the October 2019 forklift incident, Plaintiff argues she has shown Defendant's “customary practice of favoring white employees over black employees and of neglecting or choosing not to implement similar disciplinary action against white employees for any unsafe conduct observed or complained of by black employees though [Plaintiff], a black employee, was disciplined for walking.” Pl. Mem. 8 (citing Pl. Dep. 64-65). Plaintiff has not set out competent evidence that either Seay or Bradley was subject to less-severe discipline for the same or similar behavior. Her unsubstantiated argument that white employees were treated differently for what she perceived as unsafe conduct while characterizing her actions on October 29, 2019 concerning the forklift as “walking” does not satisfy the requirement that she set forth actual evidence of comparators who were treated differently for similar misconduct. Accordingly, Plaintiff cannot establish a prima facie case of race-based discrimination. Summary judgment is appropriate.
Even assuming, arguendo, that Plaintiff could establish a prima facie case of race-based discrimination, summary judgment remains appropriate. Defendant has set forth a legitimate, nondiscriminatory reason for Plaintiff's suspension: Defendant found Plaintiff acted recklessly by walking toward a moving forklift and determined suspension was appropriate based on violation of safety rules. Smith Decl. ¶ 8. Plaintiff does not take issue with Defendant's finding that “failure to adhere to safety standards” provided a legitimate reason to suspend her. See Pl. Mem. 8. Rather, Plaintiff argues that, if failure to adhere to safety standards was a legitimate reason to suspend her, Do it Best should have also suspended Seay for actions involving a reach truck and should have suspended Bradley for the cardboard-throwing incident. Pl. Mem. 8.
This argument is insufficient for Plaintiff to carry the “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against [her].” Lawrence v. Veolia Transp. Servs., Inc., No. 2:07-CV-2722-MBS, 2009 WL 857394, at *5 (D.S.C. Mar. 30, 2009); see also Hatcher v. Wilkie, No. 3:17-CV-2535-JMC-PJG, 2019 WL 2090810, at *3 (D.S.C. Feb. 27, 2019) (“Accordingly, the plaintiffs burden of demonstrating pretext merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.”) (internal citations omitted).
Although Plaintiff now characterizes her actions on October 29, 2019 as “walking,” she admitted under oath that she should have walked around the forklift but did not do so. In addition, she agreed under oath that her suspension was not discriminatory:
Q. Do you think the suspension was discriminatory?
A: Yes.
Q. Okay. How? How was it discriminatory?
A: No.
Q. You do not think it was?
A: No.Pl. Dep. 94-95. Plaintiff cannot salvage her claim by changing her story.
Plaintiff has submitted no competent evidence from which a reasonable factfinder could determine her suspension was motivated by her race. Moreover, to survive summary judgment, Plaintiff would be required to show that Defendant's decisionmakers did not genuinely believe the reasons behind their actions. See Holland v. Washington Homes, Inc., 487 F.3d 208, 217-18 (4th Cir. 2007) (finding that no reasonable juror could conclude the decision-maker's reason was pretextual where plaintiff's evidence failed to address whether decision-maker “did not honestly believe” that plaintiff engaged in the alleged misconduct). Plaintiff has provided no such evidence.
While Plaintiff may disagree with Defendant's personnel actions, questions regarding the veracity of an investigation or fairness of disciplinary action are not relevant to the court's pretext inquiry. Indeed, it is not the court's place to decide whether Defendant's reasoning “was wise, fair, or even correct, ultimately, so long as it truly was the reason for [Plaintiff's suspension].” Hawkins v. PepsiCo. Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citing DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)).
Plaintiff cannot establish pretext, and summary judgment should be granted as to her Title VII disparate-discipline claim.
2. Title VII discrimination claim: hostile work environment
Title VII prohibits discrimination in the form of a hostile work environment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 73 (1986) (hostile work environment discrimination actionable under Title VII). Plaintiff's Title VII claim includes alleges she was subjected to a race-basedhostile work environment. Compl. ¶ 25a-g. Defendant seeks summary judgment as to this claim, as well. Def. Mem. 19-27; Reply 7-11. Plaintiff submits she has set out sufficient evidence of such a claim. Pl. Mem. 9-11.
Although paragraph 25c references alleged gender-based discrimination, Plaintiff is no longer pursuing gender-based claims as they were not exhausted before the EEOC. See ECF No. 41 at 4 (Report and Recommendation granting partial motion to dismiss); ECF No. 42 (Order adopting ECF No. 41).
A hostile work environment exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted). “[T]o prevail on a Title VII claim that a workplace is racially hostile, a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's race; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (internal citation, alteration, and quotation marks omitted).
Defendant argues Plaintiff cannot establish a hostile work environment because she has not demonstrated unwelcome conduct that was based on her race or conduct that was “severe or pervasive.” Def. Mem. 19-21. To establish an environment of race-based unwelcome conduct, Plaintiff must “‘show that ‘but for' [her] race . . ., [she] would not have been the victim of the alleged discrimination.'” Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007) (quoting Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998)). See Hawkins v. PepsiCo, Inc., 203 F.3d at 281 (finding that personal disputes with supervisor, without evidence that harassment was racial in nature, were not enough to survive summary judgment on hostile work environment claim).
In opposing summary judgment, Plaintiff cites applicable law, properly noting that it is appropriate to examine the “totality of the circumstances,” and that a focus will be “the plaintiff's experience, [and] evidence of how others were treated[.]” Pl. Mem. 9 (quoting Perkins v. Int'l Paper Co., 936 F.3d 196, 209-10 (4th Cir. 2019), and Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001)). Plaintiff then generally argues that the environment was “sufficiently severe” based on Defendant's “practice of ignoring complaints about white employees,” and this practice “altered [Plaintiff's] employment conditions” and created an abusive environment.” Pl. Mem. 10 (citing no specific evidence). Plaintiff submits that she need not show “actual racial discrimination” to establish her claim, indicating she repeatedly testified that supervisors ignored her complaints about white employees and “had a general disinterest in her and treated her disparately because Ms. Stone is black and the co-workers she complained about are white.” Pl. Mem. 10 (again citing no specific evidence). Plaintiff again focuses on the forklift incident in which she was suspended, arguing Defendant did not “similarly discipline Mr. Seay for violating the safety rules in the reach truck incident,” nor did they warn him about his conduct. Pl. Mem. 10 (citing Pl. Dep. 145). Plaintiff then cites to an old (March 2018) EEOC Charge in which she had complained that her supervisor advised that black employees could no longer bring food without imposing such restrictions on white employees. Pl. Mem. 10 (citing ECF No. 47-2 at 237).Plaintiff also cites to her deposition testimony that management believed Bradley (white), not Plaintiff, when Plaintiff reported Bradley had whistled at her but Bradley had denied same. Pl. Mem. 10-11 (citing Pl. Dep. 66). Plaintiff concludes her argument by indicating that the workplace “became increasingly abusive” when Seay “intentionally headed the forklift directly towards [Plaintiff] in an unsafe manner contrary to Do it Best's safety rules.” Pl. Mem. 11. Plaintiff submits the “totality of the circumstances” shows a hostile and abusive environment and that she perceived the workplace to be abusive and hostile.” Id.
To the extent this years-old EEOC Charge is considered, the court notes that, in her deposition in the instant case, Plaintiff conceded that the supervisor also restricted white employees from bringing food. Pl. Dep. 133-34.
As an initial matter, the court notes that Plaintiff's own statements in her memorandum, unsupported by actual record evidence, are insufficient. See Rountree v. Fairfax Cnty. Sch. Bd., 933 F.2d 219, 223 (4th Cir. 1991) (“The arguments of counsel, absent any evidence such as sworn affidavits accompanying objections to a motion for summary judgment, fail to meet the evidentiary standard necessary to create a genuine issue of material fact.”). Further, much of what Plaintiff says in claiming she experienced a hostile and abusive workplace is contradicted by the record, namely it is contradicted by what Plaintiff said in her deposition in this case. While Plaintiff argues white employees were disciplined less harshly for the same or similar behavior and her complaints concerning white employees' safety violations were ignored, the evidence does not support this. For example, to the extent Plaintiff is focused on the different ways she and Seay were treated after the forklift incident, Defendant correctly argues that Plaintiff has not established such difference was in any manner race-based. Def. Mem. 20-21 (citing Plaintiff's deposition testimony in which she testified her suspension was not discriminatory, Pl. Dep. 94-95). Rather, the evidence supports Defendant's findings that Seay's behavior did not violate safety standards. Smith Decl. ¶ 7. Further, Smith explained that, during the year in which Plaintiff received a three-day suspension three white employees were disciplined for safety violations. Smith Decl. ¶ 10. Plaintiff's own unsupported belief that white employees were treated differently does not support a race-based hostile work environment claim. Considering all of Plaintiff's arguments and competent evidence in the light most favorable to her, she simply has not shown that the treatment of which she complains took place “because” she is black. Rather, while Plaintiff's complaints arguably set out potentially unwelcome conduct, she has not shown that such conduct stems from her race. Title VII only prevents unwelcome conduct stemming from a protected characteristic; it is not a general civility code. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). As the Supreme Court stated, “Title VII does not prohibit all verbal or physical harassment in the workplace ....” Id.
Plaintiff's “own naked opinion, without more, is not enough to establish a prima facie case of [] discrimination.” Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988). Plaintiff has provided no evidence of racially related statements directed toward her or others. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 191 (4th Cir. 2004) (finding summary judgment appropriate when, even though there may be evidence of hostility toward an employee, the record contained no evidence that the “hostility was generated on account of [Plaintiff's] race.”). Title VII does not provide a cause of action to prevent rudeness. See Baqir v. Principi, 434 F.3d 733, 747 (4th Cir. 2006). Simply put, Plaintiff has not presented the evidence necessary to show that she was subject to unwelcome conduct on account of her race.
Further, the undersigned agrees with Defendant that, even considering all evidence in the light most favorable to Plaintiff, she has not established an environment that was both objectively and subjectively hostile. “To be actionable, the conduct must create an objectively hostile or abusive work environment, and the victim must also perceive the environment to be abusive.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2007). A hostile work environment exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris, 510 U.S. at 21 (internal quotation marks and citations omitted). When considering a plaintiff's claim that she was subjected to a hostile work environment, the court considers the totality of the circumstances. Relevant factors “may include the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris, 510 U.S. at 23.
Plaintiff proffers little-to-no argument that she can satisfy the “objectively hostile or abusive work environment” prong of her hostile-work-environment claim. Construed most liberally, she argues that Defendant's “practice of ignoring complaints about white employees was sufficiently severe” to “alter[] [her] employment conditions” and to cause her to suffer “ a loss of the privilege of her employment.” Pl. Mem. 10. Other than the already discussed argument that white employees were treated differently, Plaintiff provides no more to support an argument that her performance had been unreasonably interfered with.
Here, the undersigned accepts that Plaintiff may have subjectively felt the environment to have been abusive. Nonetheless, the undersigned finds nothing in Plaintiff's argument or proffered evidence that indicates an environment that could satisfy the objective prong of the test-one “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere.” Sunbelt, 521 F.3d at 516. A reasonable jury would not find the situations Plaintiff describes to be “so out of the ordinary as to meet the severe or pervasive criterion.” Id. Because Plaintiff cannot show a severe and pervasive hostile environment based on her race, summary judgment is appropriate on her hostile-work-environment Title VII discrimination claim. Further, long-standing employment-law jurisprudence counsels that it is the employer, and not the court, to “rule on the wisdom and generosity of [a supervisor's] management practices.” Hawkins, 203 F.3d at 281 (affirming grant of summary judgment as to hostile-work-environment claim, noting plaintiff's “claims that she received inadequate coaching, had to do work over and over, and was unreasonably required to work late on the night of an office Christmas party, and did not have access to the same work opportunities as other managers” were not objectively severe and pervasive and did not include information tying them to plaintiff's race). Here, because Plaintiff has not shown that any unwelcome conduct was “because of” her race or was sufficiently severe or pervasive, summary judgment is appropriate as to Plaintiff's Title VII hostile-workenvironment claim.
3. Title VII retaliation claim
Plaintiff's Complaint includes a cause of action for retaliation in violation of Title VII. Compl. ¶¶ 31-36. Plaintiff references protected activities of “making complaints of racial discrimination and a racially hostile work environment.” Compl. ¶ 32. An employee can set out a prima facie claim of Title VII retaliation by establishing the following: “(1) that [s]he engaged in protected activity; (2) that [her] employer took an adverse action against [her]; and (3) that a causal connection existed between the adverse activity and the protected action.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 578 (4th Cir. 2015) (cleaned up). If an employee establishes a prima facie case of retaliation, the burden then shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse action. Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006). A plaintiff must thereafter demonstrate that the employer's reason was a mere pretext for retaliation by showing “both that the reason was false and that discrimination was the real reason for the challenged conduct.” Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir. 1995) (internal quotation marks omitted). Significantly, the Supreme Court has held that the protected activity by the employee must be the but-for, direct cause of the adverse employment action. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2528 (2013) (“Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”).
Defendant seeks summary judgment as to the Title VII retaliation claim, arguing Plaintiff cannot establish a prima facie case because she cannot causally tie her protected activity to any adverse employment action. Based on Plaintiff's administratively exhausted allegations set out in her Complaint, Defendant concedes that Plaintiff's Charges filed with the EEOC or SCHAC are protected activities. Further, Defendant concedes that the three-day suspension Plaintiff received in November 2019 was a protected activity. Def. Mem. 27-28. Defendant argues, however, that Plaintiff has no evidence of any causal relationship between the November 2019 suspension and the most-recent EEOC activity-her April 2019 EEOC Charge. Id. at 28-29. While Defendant notes temporal proximity may at times supply prima facie causation in the retaliation context, Defendant submits the seven-month lapse between the April 2019 protected activity and the November 2019 adverse action is insufficient to establish causation. Id. (citing Horne v. Reznick Fedder & Silverman, 154 Fed.Appx. 361, 364 (4th Cir. 2005), in which the Fourth Circuit found a two-month lapse, without more, was insufficient to establish causation). Defendant further notes Plaintiff's deposition testimony that she did not consider the suspension to have been discriminatory in nature. Pl. Dep. 94-95.
In any event, Defendant argues that, if a prima facie case were established, Plaintiff cannot show she would not have been subjected to the November 2019 adverse employment action of the suspension but for her April 2019 EEOC Charge so she cannot prevail under the pretext analysis. Def. Mem. 27-30.
In response, Plaintiff argues she has provided sufficient evidence of a prima facie case of Title VII retaliation. However, in analyzing her prima facie case, Plaintiff greatly expands what she believes her “protected activities” and potential “adverse actions” to be in this case while also conflating a Title VII retaliation claim (which her Complaint contains) with an FMLA retaliation claim (which her Complaint does not contain). Pl. Mem. 11-14. Plaintiff lists her protected activities as follows:
1) filing three EEOC charges against Do it Best wherein she alleged race discrimination and retaliation, 2) in participating in an EEOC investigation, 3) submitting an FMLA request, and 4) requesting to modify her starting work hours due to medical issues related to the FMLA request.Pl. Mem. 12.
Without acknowledging this list of protected activities is expanded from what her Complaint included and from what Defendant analyzed in seeking summary judgment, Plaintiff argues that Defendant has “not challenged the first and second prong” of the prima facie case but has only challenged causation. Id. In support of her argument that she has established prima facie causation, Plaintiff focuses only on the protected activity of submitting an FMLA request, arguing that request caused her to suffer “an adverse employment action, disciplinary action for tardies [], which also led to her forced, early retirement.” Id. (citing Pl. Dep. 59). Plaintiff also references her January 2020 EEOC Charge, apparently attempting to paint it and her FMLA request as being “causally linked” to Plaintiff's being “forced into retirement in or about April 24, 2020 - one month after filing FMLA.” Id. (citing Pl. Dep. 114, 122, 123; also citing Aff. of Former Do it Best Employee Willette Wright, ECF No. 57-2). Without actually undertaking a pretext analysis, Plaintiff also briefly submits that her “forced, early retirement was in retaliation for her protected activity, which was a pretext for discrimination.” Id.
Ms. Wright, a black female and former employee of Defendant who did not work in Plaintiff's department, offers her opinion that, when Smith became manager, black employees “worked in an environment that was discriminatory to [them] based on [their] race . . . because it seemed Scott Smith and his decisions [] prefer[red] white employees over black employees in personnel matters.” Wright Aff., ECF No. 57-2. Wright indicates she was aware of the effect the environment had on Plaintiff and that Plaintiff “made the decision to retire early because she did not receive any redress or relief from management regarding the work-place treatment she was receiving.” Id. Wright indicates white employees were promoted over black employees with more experience. Id. (offering no particulars regarding such promotions). Defendant objects to consideration of Wright's affidavit, because Wright “lacks personal knowledge of the facts at issue in this case.” Reply 2 n.1. In any event, Defendant submits the Affidavit does not operate to create material issues of fact. Id. The undersigned agrees that Wright's generalized testimony does not inform specific issues in this case and need not be considered at all. Even if it is considered, it does nothing to alter the undersigned's recommendations herein.
The undersigned agrees with Defendant's argument on Reply that Plaintiff's attempted expansion of her “protected activities” and “adverse employment activities” is unavailing and that Plaintiff has not established a prima facie case of Title VII retaliation. See generally Reply 11-13. As an initial matter, the court notes that Plaintiff's Complaint includes only a Title VII retaliation claim. It does not include an FMLA retaliation claim (or, for that matter, any FMLA claim). The law is clear that Plaintiff's taking FMLA leave is not a protected activity within the meaning of Title VII. See Cooper v. Spartanburg Cnty. Sch. Dist. No. 7, No. 7:13-cv-00991-JMC-JDA, 2016 WL 4491870, at *4 n.9 (D.S.C. June 15, 2016), report and recommendation adopted, No. 7:13-CV-00991-JMC, 2016 WL 3610608 (D.S.C. July 6, 2016), aff'd sub nom. Cooper v. Spartanburg Cnty. Sch. Dist. No 7, 693 Fed.Appx. 218 (4th Cir. 2017) (finding the taking of FMLA leave was not a protected activity to be considered in employee's Title VII retaliation claim); see also Moore v. Nat'l Tire & Battery, No. 13-cv-01779 AW, 2013 WL 5587295, at * 3 (D. Md. Oct. 9, 2013) (noting that “taking FMLA leave is not protected activity within the meaning of Title VII; it has nothing to do with whether an employee has a reasonable belief that the employer is violating her (or someone else's) rights under Title VII or has participated in a proceeding under Title VII.”). Plaintiff's attempt to raise any additional claims at the summary-judgment stage is unavailing. See generally Walton v. Harker, 33 F.4th 165 (finding employee could not pursue additional claims as part of her retaliation cause of action when they were not included in federal-court complaint and were added only in response to summary judgment). Accordingly, for purposes of Plaintiff's retaliation claim, the court considers only Plaintiff's EEOC Charges (filed March 20, 2018, April 15, 2019, and January 14, 2020) and that she participated in an EEOC investigation (although the court notes that Plaintiff does not focus more specifically on how or when she participated in an EEOC investigation, it notes she necessarily did so because she filed Charges).
In addition to her three-day suspension, which undoubtedly is an “adverse employment action” for purposes of the retaliation claim, Plaintiff also claims she suffered adverse actions based on a disciplinary action for tardies, which led to what she calls her “forced retirement.” Pl. Mem. 12. The undersigned agrees with Defendant, however, that the discipline for tardies and the retirement are not appropriately considered adverse actions in the retaliation context.
The Supreme Court has held that in order to establish an adverse employment action in the context of a retaliation claim, “plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citing Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)) (internal quotation marks omitted). “The Supreme Court emphasized that the ‘materiality' requirement was necessary to ensure that only significant harms would be actionable.” Perkins, 936 F.3d at 213-14 (citing BurlingtonN., 548 U.S. at 68-70).
Regarding the reprimands for being tardy, Plaintiff testified that she received warnings called “tardies” “over the years,” although she does not recall specific occasions she received them. Pl. Dep. 59. Plaintiff also indicated she was never suspended for her “tardies,” and that she never received anything other than a verbal or written warning. Id. at 83-84. She offers no evidence that the warnings caused her injury or harm. Accordingly, the “tardies” Plaintiff received are not materially adverse actions for purposes of her retaliation claim. Austin v. Boeing Co., No. CV22001142RMGMGB, 2021 WL 6494747, at *12 (D.S.C. Oct. 25, 2021), report and recommendation adopted, No. 2:20-CV-1142-RMG, 2021 WL 5904114 (D.S.C. Dec. 14, 2021) (finding warnings were not materially adverse).
Plaintiff alleges the discipline “led to her forced, early retirement.” Pl. Mem. 13 (citing Pl. Dep. 59). Certainly, if there were record evidence to support Plaintiff's allegation in her brief that she was forced to retire, further consideration would be necessary to decide whether her retirement were really “forced” and “involuntary,” making it tantamount to a constructive discharge, an adverse employment action. See generally, Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir. 1988) (holding that coerced resignation amounts to a constructive discharge). In determining whether an employee can show she was forced to retire/quit such that she has demonstrated constructive discharge, the court “looks to the circumstances of the resignation to determine whether the employee was denied the opportunity to make a free choice.” Id. at 17374.
Although neither party discusses constructive discharge, to the extent Plaintiff is arguing her retirement amounts to a constructive discharge, she cannot prevail. As the Fourth Circuit recently noted that because “proof of constructive discharge requires a greater severity or pervasiveness of harassment that the minimum required to prove a hostile working environment] . . . it necessarily follows that [she] cannot show constructive discharge[.]” Andrews v. Va. Polytechnic Inst. & St. Univ., No. 20-1297, 2022 WL 794979, at *3 (4th Cir. Mar. 15, 2022) (alteration in original) (internal quotations and citations omitted).
Here, Plaintiff points to no evidence that she retired because she was denied the opportunity to decide whether to retire. Rather, the only deposition testimony from Plaintiff that speaks to the voluntariness of her early retirement follows:
Q. Okay. Did anybody at the company tell you you had to retire?
A. No.
Q: You made the decision to retire on your own?
A: Yes.Pl. Dep. 138. Plaintiff has not set forth evidence sufficient to permit a reasonable juror to believe her retirement was “forced.” Accordingly, she has not shown that her retirement amounted to a materially adverse employment action.
In sum, then, the only materially adverse action before the court is Plaintiff's November 2019 suspension. The only protected activities that could be tied to it would be the March 2018 and April 2019 EEOC Charges and her participation in the EEOC's investigation of such charges. Plaintiff is correct that she need not satisfy the but-for causation standard at the prima facie stage. Pl. Mem. 13; Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 251 (4th Cir. 2015) (holding employee need not establish but-for causation until pretext stage of burden-shifting framework). Plaintiff is required, however, to proffer some evidence linking her March 2018 and April 2019 EEOC activity to her November 2019 suspension. She has not done so. In fact, in opposing summary judgment Plaintiff never even focuses on what a causal link between the Charges and the three-day suspension might be. The undersigned agrees with Defendant that Plaintiff cannot satisfy causation sufficient to satisfy her prima facie case. While temporal proximity is at times sufficient to establish prima facie causation, absent any other evidence of causation, the seven months between April and November 2019 (as well as the 18 months between March 2018 and November 2019) is too long. Cf. Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 127 (4th Cir. 2021) (“Although there is no ‘bright-line rule' for temporal proximity, courts within our Circuit have found that shorter lapses of time similar to the three-month period at issue in the case before us are insufficient to infer a causal relationship without other evidence of a causal link.”). Because Plaintiff cannot satisfy the third prong of her prima facie case, summary judgment should be granted as to her retaliation claim.
Even if Plaintiff were found to have established a prima facie case, as discussed above, Defendant has set out a legitimate, nondiscriminatory reason for the three-day suspension and Plaintiff has proffered no evidence sufficient to establish that, but-for her EEOC activity, she would not have been suspended in November 2019. Summary judgment is appropriate.
C. ADA claim
Defendant seeks summary judgment as to Plaintiffs ADA claim. The ADA provides in part that an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §§ 12111(2), 12112(a). Violations of the ADA occur when the employer either wrongfully takes an adverse employment action against a qualified individual with a disability or fails to make reasonable accommodations for her. Rhoads, 257 F.3d at 387 n.11.
Plaintiff Fourth Cause of Action is for “Disability Discrimination in violation of the [ADA]/Rehabilitation Act of 1973, as amended, 29 U.S.C. 706; 791 et seq.).” Compl. ¶¶ 51-65. Most of Plaintiff's allegations focus on what appears to be a failure-to-accommodate claim. E.g., Compl. ¶¶ 56-60 (discussing Plaintiff's accommodation claim and Defendant's alleged failure to engage in an interactive discussion regarding accommodation). In one paragraph of her Complaint, Plaintiff arguably raises a disability-discrimination claim. Id. ¶ 61 (“Upon information and belief, other Defendant Corp. employees have been provided other work place accommodations for illnesses/disabilities where Plaintiff was not.”).
The ADA, not the Rehabilitation Act, is applicable to private employees such as Plaintiff. Plaintiff is not pursuing a claim under the Rehabilitation Act in any event.
Defendant seeks summary judgment under either theory. Def. Mem. 30-33. As Plaintiff has offered no direct evidence of a disability-discrimination claim, this claim is also considered pursuant to the burden-shifting framework. See Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 150 (4th Cir. 2012) (applying burden-shifting framework to ADA claim). First, Defendant submits Plaintiff cannot establish a prima facie failure to accommodate claim because she never requested an accommodation. To establish a prima facie failure-to-accommodate claim a plaintiff must demonstrate (1) that she was an individual who had a disability within the meaning of the ADA, as amended; (2) that the employer had notice of her disability; (3) that with reasonable accommodation she could perform the essential functions of the position; and (4) that the employer refused to make such accommodations. See Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013). To establish the third prong of a failure to accommodate claim, the Plaintiff must show that she was a qualified individual with a disability, meaning that ‘with or without [a] reasonable accommodation, [she] can perform the essential functions of the employment position[.]” Id.; 42 U.S.C. § 12111(8); see also Tyndall v. Nat'l Educ. Ctrs., Inc. of Calif., 31 F.3d 209, 213 (4th Cir. 1994).
Here, as Defendant points out, Plaintiff herself testified that she never requested any accommodation.
Q. Did you every request any kind of accommodation from the company based on your diabetes?
A. No.
Q. Did you request any accommodation from the company based on your high blood pressure?
A. No. The last-let me explain part of that. The last, maybe month before I retired, I did request FMLA. I did turn in paperwork.
Q. Okay. And that was the first time you requested any type of leave or accommodation related to your-
A. I didn't request no leave or nothing. I just put it in in case I would need one.Pl. Dep. 114-115. It is axiomatic that Plaintiff could never satisfy the fourth prong-showing that Defendant refused a request for accommodation-because she never requested any sort of accommodation. Bell v. Alion Sci. & Tech. Corp., No. CV 3:15-4334-MGL-SVH, 2017 WL 2123933, at *7 (D.S.C. May 1, 2017) (finding prima facie case could not be established and noting, “Because Plaintiff never requested an accommodation, Defendant could not have refused his request.”), report and recommendation adopted, No. CV 3:15-4334-MGL-SVH, 2017 WL 2118490 (D.S.C. May 16, 2017). Further, to the extent Plaintiff may be arguing that her submission of her FMLA paperwork was, in fact, a request for an accommodation under the ADA, the court notes that “the leave provisions of the [FMLA] are wholly distinct from the reasonable accommodation obligations of employers covered under the [ADA.]” 29 C.F.R. § 825.702(a). Whether an employee is a “qualified individual with a disability” for purposes of the ADA or she has a “serious health condition” as defined by the FMLA “are different concept, and must be analyzed separately.” 29 C.F.R. § 825.702(b).
In opposing summary judgment Plaintiff never specifically addresses Defendant's argument that she never sought an accommodation. Her opposition focuses instead on an argument apparently related to demonstrating that she was an “individual with a disability,” by noting that, in certain situations, an employee can be considered “disabled” for purposes of the ADA if she shows she has been “regarded as” having a disability. Pl. Mem. 13 (citing 42 U.S.C. § 12102(3). Without explaining how this “regarded as” analysis helps her case, Plaintiff points to her deposition testimony that, even though Defendant knew she suffered from hypertension that could cause headaches and make her late to work, she had at times received warnings for tardiness and was once advised to work “whether she had headache or not.” Id. (citing Pl. Dep. 57, 59, 61, 8182). The court will not try to divine what Plaintiff may mean by making this argument. In any event, the undersigned has reviewed the cited testimony and finds nothing that salvages Plaintiff's failure-to-accommodate claim. There is no indication that she ever requested an accommodation that was denied. To the extent Plaintiff is claiming she satisfies the statutory definition of having a disability because she was “regarded as” disabled, no failure-to-accommodate claims will lie for those claiming disability under that prong. See Lee v. Olsten Staffing Servs. Corp., No. 4:18-CV-02520-SAL, 2020 WL 4726738, at *2 (D.S.C. Aug. 14, 2020). Summary judgment is appropriate as to Plaintiff's ADA claim based on a failure to accommodate.
State Farm Fire & Cas. Co. v. Morningstar Consultants, Inc., No. CV 6:16-01685-MGL, 2017 WL 2265919, at *3 (D.S.C. May 24, 2017) (“No one, of course, would suppose, suggest, or suspect it is within the purview of this Court to take a single simple [excerpt] in a counseled case, fashion an argument, adorn it with legal citations, and then judge the strength of its own argument. It is not within the ambit of the Court's role to do so.”). It is not the court's place to make arguments for the parties. Cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”).
Neither party analyzes whether Plaintiff can show her condition is a “disability” under any of the ADA's definitions. Based on the recommendation herein, that analysis is not necessary.
To the extent Plaintiff is pursuing a disparate treatment claim under the ADA, it is also subject to summary judgment. To establish a prima facie case of such discrimination, Plaintiff must prove that: (1) she is disabled; (2) she was a qualified individual; and (3) she suffered an adverse employment action based on her disability. Laird v. Fairfax Cnty., Va., 978 F.3d at 893 n.4. As Defendant notes, Plaintiff testified at her deposition that she was never treated unfairly because of a disability. Def. Mem. 32 (citing Pl. Dep. 116).
In opposing summary judgment Plaintiff claims she has demonstrated disparate treatment “as she was forced by the UPS lead person, Tina Amick, to work despite her disability, which made her sick subsequently.” Pl. Mem. 13 (citing Pl. Dep. 114). She indicates that, “[l]ater, [she] requested FMLA a month before her retirement as she was sick.” Id. (citing Pl. Dep. 114-115). Plaintiff then lapses back into an argument apparently related to a failure-to-accommodate claim. Id. (“However, Do it Best neither accommodated her disability nor did they try to engage in an interactive process to determine if any accommodations would assist [Plaintiff] in performing her job duties.”). Plaintiff then submits that Defendant allowed “workplace accommodations for illnesses or disabilities” for other employees. Id. Notably, however, Plaintiff proffers no detail, let alone evidence, of other employees or how they were treated differently in this regard.
Having reviewed the deposition testimony cited by Plaintiff the court finds no evidence that Plaintiff suffered an adverse employment action based on any disability or medical issue. An adverse employment action is a discriminatory act that “adversely affects the terms, conditions, or benefits of the plaintiff's employment.” See James v. Booz-Allen & Hamilton. Inc., 368 F.3d 371, 375 (4th Cir. 2004) (cleaned up). “An action that merely causes an employee irritation or inconvenience, but does not affect a term, condition, or benefit of her employment, is not an adverse employment action.” Spriggs v. Pub. Serv. Comm'n, 197 F.Supp.2d 388, 393 (D. Md. 2002). Nor has Plaintiff provided any evidence of others who were treated more favorably than her. Summary judgment is appropriate as to Plaintiff's claim of disparate treatment under the ADA.
IV. Conclusion and Recommendation
For the reasons set forth above, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 47, be granted and this matter be ended.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”